Sweet v. Clare-Mar Camp, Inc.

• Decision Date: 06 April 1987
• Docket Number: CLARE-MAR,No. 51796,51796
• Parties: SWEET et al., Appellants, v.CAMP, INC., Appellee. *
• Court: Ohio Court of Appeals

Page 6

38 Ohio App.3d 6

526 N.E.2d 74

SWEET et al., Appellants, v. CLARE-MAR CAMP, INC., Appellee. ^*

No. 51796.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 6, 1987.

Syllabus by the Court

1. It is error for a trial court, in the absence of counsel, to give additional instructions to the jury after it has retired for deliberation.

2. A "business invitee" is one who is upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner and is one to whom the owner owes a duty to exercise ordinary care in maintaining the premises in a safe condition.

3. A "licensee" is one who enters the premises of another, by permission or acquiescence, for his own benefit or convenience.

4. A "trespasser" is one who enters or remains upon the premises of another without a privilege to do so created by the possessor's consent or otherwise.

5. The status of an individual upon the premises of another may change while he remains on that land. Thus, if an invitee goes outside the area of his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent.

6. Civ.R. 49(B) grants to the parties the sole prerogative of requesting interrogatories in order to test the basis of the jury's verdict. Thus, the court should refrain from sua sponte submitting interrogatories to the jury.

Spangenberg, Shibley, Traci & Lancione, Thomas A. Heffernan and Peter J. Brodhead, Cleveland, for appellants.

Weston, Hurd, Fallon, Paisley & Howley and Donald H. Switzer, Cleveland, for appellee.

McMANAMON, Judge.

Donald M. Sweet brought suit against Clare-Mar Camp, Inc. claiming that he sustained injuries while using a water slide at the defendant's campground. His wife, Beverly, sued for loss of consortium. The Sweets now appeal a jury verdict for the defendant. They raise five assignments of error, ¹ challenging ex parte communications by the court with the jury on substantive issues, impermissible sua sponte submission of interrogatories by the court and improper charges to the jury on issues not germane to the case.

Their claims of error are essentially well-taken and require reversal and remand for a new trial.

Clare-Mar Camp, Inc. is a family-run campground owned by Leonard and Barbara Sears. The camp includes a swimming lake equipped with sixteen-and-one-half-foot and fifty-foot slides. No restrictions or signage govern their use.

Donald Sweet, accompanied by various family members and friends, arrived at Clare-Mar Camp on the evening of Friday, August 12, 1983. Having paid an admission fee, they were permitted access to all camp facilities.

On Saturday morning the Sweet group approached the swimming lake sometime before 10:00 a.m. Aware that camp rules prohibited use of the lake until that hour, Sweet and the others testified at the trial that they did not immediately enter the water. Instead, they averred that they asked a young woman, who they assumed was a lifeguard, whether they could use the small slide. According to the Sweets, this young woman, who was wearing a bathing suit and a whistle about her neck, gave permission, but instructed them to wait until 10:00 a.m. She further advised them to pour water on the slide before using it. The Sweets claim that they entered the lake only after the woman blew her whistle indicating it was 10:00 a.m.

Donald Sweet, Jr. stated that he went down the slide first and found the water so shallow that he hit his back on the lake bottom. According to the son, he was unable to warn his father before the senior Sweet proceeded down the slide. Sweet testified that as he entered the water, his feet hit the lake bottom causing serious injury to his left ankle.

Experts for each side provided conflicting opinions as to the safety and dangers attendant upon use of the slide, the depth of the water and Sweet's point of entry into the water from the slide. Conflicting medical testimony as to the nature of Sweet's injuries also was introduced.

In addition to the opinion of the camp's expert witness, its defense was based upon the testimony of Leonard Sears and other park employees who claimed that the accident occurred before 10:00 a.m. Sears' son further averred that "some woman" stated that Sweet broke his leg on the grass.

I

We will combine the questions raised concerning the court's ex parte communications with the jury in our analysis.

In their first assignment of error, the Sweets assert that the trial court committed reversible error in commenting upon the evidence in its instructions to the jury.

The record reflects that, following the court's initial charge to the jury, defense counsel untimely requested that an additional "issue" be submitted. Over plaintiffs' objections, the court granted the request. After the jury returned from lunch, but before it began to deliberate, the court, in the absence of counsel, made the following statement to the jury:

"At the request of defense counsel I added one issue, which I had not included before, but which I think properly should be included. Do you find that the accident occurred in connection with the plaintiffs' use of the slide? Remember, there was [sic ] claims that he slipped in the grass or something and so on."

It is the Sweets' contention that this supplemental instruction constituted an impermissible comment upon the evidence.

First, we note that the defense argues that the Sweets' counsel knew of the court's intention to reconvene the jury and chose not to attend, thus waiving any right to assign as error the court's comments. This argument is spurious. The Sweets timely objected to the substance of the instruction. Furthermore, the record reveals that the court told counsel that it would submit defense counsel's additional inquiry. The court gave no indication that it would elaborate upon the question in this regard or otherwise single out evidence for specific mention.

It is well-established that a trial court must not unduly emphasize the facts supporting one party's claims. See McIntyre v. Kuhns Bros. Co. (1977), 54 Ohio App.2d 131, 8 O.O.3d 245, 375 N.E.2d 1264. The court also should carefully avoid conveying its own prejudices and biases to the jury. See Metropolitan Life Ins. Co. v. Howle (1903), 68 Ohio St. 614, 68 N.E. 4. Further, the jury should rely on its collective memory as to the evidence introduced by each party, and a court must refrain from reciting its own version of the evidence.

The Sweets specifically argue that the court's comments were improper because the "claims" referred to were introduced through hearsay testimony and that by using the words "so on" the court implied that the hearsay was corroborated.

Without attempting to evaluate the impact of the court's reported remarks, our prime concern is their utterance in the absence of counsel. It is impossible for counsel or for this court to know the tone of voice in which this instruction was conveyed. We recognize that the English language is susceptible to various interpretations depending upon the emphasis placed on different words. We also recognize that the evidence highlighted by the court was disputed.

We hold the court's delivery of an instruction particularizing a portion of the evidence, outside the presence of counsel, to be an unsupportable irregularity.

The Sweets' second and third assignments of error also challenge the court's ex parte communication with the jury.

At the close of its formal charge to the jury, the court provided the panel with a series of written interrogatories to be answered during their deliberations.

The record demonstrates that the court received the following question, presumably signed by a member of the jury during its deliberation:

"If we feel that there is no negligence on the part of the defendant do we still have to have a definite answer to # 3 and # 4. We are all in agreement."

The questions to which the note refers are as follows:

"3. Did plaintiff or did he not, contrary to that regulation, use the small slide and enter the lake before 10:00 a.m. on August 13, 1983?

"4. Under the circumstances present, if your answer to previous question was yes, did this action change plaintiff's status from that of an invitee, business visitor, to that of a licensee or trespasser?"

The court responded to the jury dehors the record. Counsel agree that the court informed them by telephone that the jury had submitted a question. Both lawyers proceeded to the courthouse. However, without waiting for their arrival, the court addressed the jury. Counsel arrived just as the panel was leaving the courtroom.

It is well-established that it is error for the trial court, in the absence of counsel, to give additional instructions to the jury after it has retired for deliberation. See Hrovat v. Cleveland Ry. Co. (1932), 125 Ohio St. 67, 180 N.E. 549, paragraph one of the syllabus; Krieger's Cleaners & Dyers, Inc. v. Benner (1931), 123 Ohio St. 482, 175 N.E. 857, paragraph two of the syllabus. Such communication is wholly inappropriate and often constitutes grounds for reversal. See Hrovat, supra; Krieger's Cleaners & Dyers, supra.

In very limited circumstances, reviewing courts have found a trial court's ex parte communication on peripheral matters with a jury to be harmless. See Rushen v. Spain (1983), 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267. However, in the instant case, the court's communications ostensibly related to the substance of the jury charge.

It was incumbent upon the court to provide counsel, who are advocates, with the full opportunity to monitor the substance and delivery of the court's presentation, to voice appropriate objections and to provide legal insights. In view of a silent record we are unable to determine the propriety of the court's words to the jury concerning its note or otherwise.

The Sweets challenge to the court's ex parte statements...